Friedrich v. US Computer Services

• Citation: 787 F. Supp. 449
• Decision Date: 03 September 1991
• Docket Number: No. 90-1615.,90-1615.
• Parties: Paul FRIEDRICH, Roger Hall, Tom Harahan, Richard Omvig, Roseanne Saunders, Richard Schaefer, Jack Wasneski, and Steve Zizza v. U.S. COMPUTER SERVICES, formerly named U.S. Computer Systems, d/b/a CableData.
• Court: U.S. District Court — Eastern District of Pennsylvania

787 F. Supp. 449

Paul FRIEDRICH, Roger Hall, Tom Harahan, Richard Omvig, Roseanne Saunders, Richard Schaefer, Jack Wasneski, and Steve Zizza v. U.S. COMPUTER SERVICES, formerly named U.S. Computer Systems, d/b/a CableData.

No. 90-1615.

United States District Court, E.D. Pennsylvania.

September 3, 1991.

Denis M. Dunn, Mary Rogers Auchincloss, Media, Pa., for plaintiffs.

Alexia Kita Blake, Barnett Satinsky, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for defendant.

MEMORANDUM & ORDER

GAWTHROP, District Judge.

Plaintiffs, Paul Friedrich, Roger Hall, Tom Harahan, Roseanne Saunders, Richard Schaefer, Jack Wasneski, and Steve Zizza, who are current or former employees of defendant, U.S. Computer Services, which operates under the name "CableData", brought this action against CableData seeking overtime compensation allegedly owed to them under the Fair Labor Standards Act, ("FLSA"), 29 U.S.C. §§ 201-219, and Pennsylvania law.¹ Defendant now moves for summary judgment, arguing that its pay practices are excluded from the overtime requirements of the FLSA, under the act's motor carriers' exemption, 29 U.S.C. § 213(b)(1). For the following reasons, I shall grant the motion.

BACKGROUND

CableData is a privately held corporation that supplies computer hardware and software to cable television companies across the nation, providing maintenance and repair services for this equipment from five regional service centers. Plaintiffs are now or have been employed as field engineers by CableData, assigned to CableData's Northeast Region Office, located in Broomall, Pennsylvania. This office services customers in Pennsylvania, New York, New Jersey, Delaware, Maryland, the District of Columbia, Virginia, West Virginia, and other states when needed.

Field engineers drive to customer sites in these states to install, maintain, or repair computer hardware provided by CableData. If those sites are within four to six hours' drive, field engineers drive their own cars; to service more distant sites, they travel by air, driving rental automobiles from the nearest airport. When traveling to a customer site, field engineers carry a tool kit provided by CableData² and, depending on the trip, they may also carry various expendable parts and equipment.³See gener- ally Plaintiffs' Responses to Requests for Admissions, Nos. 8-17 (Friedrich, Hall, Omvig, and Wasneski), Nos. 6-15 (Harahan, Saunders, Schaefer, and Zizza). CableData ships computer hardware and substantial replacement parts directly to the customer site. Id.

The issue for the court is whether plaintiffs' interstate service visits, transporting tool kits and expendable parts in their own vehicles and rental vehicles, subjects them to the regulatory authority of the United States Department of Transportation ("DOT") under the Motor Carriers Act, 49 U.S.C. § 3102, and thus exempts them from the requirements of the FLSA. I conclude that it does.

DISCUSSION

I. Legislative History

Congress enacted the Motor Carriers Act in 1935, to promote economy, efficiency, and safety in the burgeoning motor transportation industry. See Act of August 9, 1935, 49 Stat. 543, c. 498, § 202(a); see also United States v. American Trucking Associations, Inc., 310 U.S. 534, 538-9, 60 S.Ct. 1059, 1061-2, 84 L.Ed. 1345 (1940). To that end, the Act gave the Interstate Commerce Commission, ("ICC"), authority to establish various requirements for "common carriers" and "contract carriers" by motor vehicle, including requirements for recordkeeping, safety of equipment, safety of operation, and "qualifications and maximum hours of service of employees." See 49 U.S.C. § 304(a)(1) & (2) (repealed). The Act also provided that the ICC could set similar "qualifications and maximum hours of service" for employees of "private carriers" by motor vehicle, if the ICC found that such requirements were needed to further "safety of operation". See 49 U.S.C. § 304(a)(3) (repealed).

In 1938, Congress passed the Fair Labor Standards Act, to protect workers from substandard wages and oppressive working hours. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 1444, 67 L.Ed.2d 641 (1981). The FLSA established the forty-hour work week, and it required employers to compensate employees at one and one-half times their standard hourly wages for time worked per week in excess of forty hours. See 29 U.S.C. § 207(a)(1). However, the FLSA specifically exempted from these overtime requirements, all "employees with respect to whom the ICC has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49." See 29 U.S.C. § 213(b)(1).

Congress thus provided that regulatory jurisdiction under the Motor Carriers Act and the FLSA would not be overlapping: where the ICC already had power to set maximum hours for workers, the FLSA would not apply. See Levinson v. Spector Motor Co., 330 U.S. 649, 662, 67 S.Ct. 931, 938, 91 L.Ed. 1158 (1947). Congress apparently determined that regulation of working hours for employees of motor carriers was best left exclusively under the safety program that the ICC was developing for the motor carrier industry. Id. at 661, 67 S.Ct. at 938.

In 1966, Congress transferred the authority to regulate under § 304 of the Motor Carriers Act from the ICC to the Department of Transportation, ("DOT"). See Act of Oct. 15, 1966, P.L. 89-670, § 6, 80 Stat. 937; 49 U.S.C. § 1655(e)(6)(C). In 1983, as part of a sweeping revision and reenactment of the nation's transportation laws, Congress repealed § 304. See Act of Jan. 12, 1983, P.L. 97-449, § 7(b), 96 Stat. 2444; see also Act of Oct. 17, 1978, P.L. 95-473, 92 Stat. 1337, 1466 (repeal and revision of related statutory sections). Congress then recodified § 304, without substantive change, as 49 U.S.C. § 3102. That section provides, in relevant part, that:

The Secretary of Transportation may prescribe requirements for —

(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and

(2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation

See 49 U.S.C. § 3102(b). Courts now treat the motor carriers' exemption of the FLSA as referring to § 3102. See Peraro ex rel. Castro v. Chemlawn Services Corp., 692 F.Supp. 109, 112 n. 2 (D.Conn.1988).

Section 3102 gives the Department of Transportation authority to regulate "motor common carriers", "motor contract carriers",⁴ and "motor private carriers". Common carriers are those that hold themselves out to provide transportation of persons or property for the general public. See 49 U.S.C. § 10102(14). Contract carriers are those that provide transportation of persons or property in accord with continuing agreements. See 49 U.S.C. § 10102(15). Private carriers are those that are neither common or contract carriers, and that (a) "transport property by motor vehicle"⁵ in interstate commerce⁶, (b) are the "owner, lessee, or bailee of the property", and (c) transport the property "for sale, lease, rent or bailment, or to further a commercial enterprise". See 49 U.S.C. § 10102(16).

CableData claims not to be a common or contract carrier, but rather to be a "motor private carrier", since CableData's field engineers transport, by motor vehicle across state lines, parts for sale, as well as tools to further a commercial enterprise. The statute literally requires no more. As a "motor private carrier", CableData would be subject to the regulatory authority of the DOT, and its employees would be exempt from the FLSA.

II. DOT Regulations

The DOT, however, has not sought to regulate operations such as CableData's. The DOT has promulgated maximum hours of service for employees of motor carriers, including private carriers, as part of the Federal Motor Carrier Safety Regulations, ("FMCSR"). See generally 49 C.F.R. § 395.1-395.15 (October 1, 1990). Yet these requirements apply only to drivers of commercial motor vehicles. See 49 C.F.R. § 395.3(a) (setting maximum hours for "drivers"); and 49 C.F.R. § 390.5 ("driver" defined as "any person who operates any commercial motor vehicle"). Under FMCSR, "commercial motor vehicles" are only those vehicles: (a) that have a gross weight in excess of 10,000 pounds, (b) that are designed to transport more than 15 passengers or (c) that are used in the transportation of hazardous materials. See 49 C.F.R. § 390.5.

There is no dispute here that the motor vehicles driven by plaintiffs in their duties as field engineers for CableData do not weigh more than 10,000 pounds. There is thus no question that current DOT regulations setting maximum hours for employees of motor carriers do not apply to plaintiffs. CableData asserts, however, that the DOT nevertheless retains the "power", under 49 U.S.C. § 3102, to regulate plaintiffs working hours, should it be so inclined.

A. Regulatory Gap

That the DOT has not exercised its power to regulate does not mean that such power does not exist. See Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244 (1943); Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085, 1089 (9th Cir.1981). In Southland, a group of employees of private carriers urged the Supreme Court to determine that the ICC had no "power", under § 304, to regulate their working hours, because the ICC failed to establish regulations for private carriers. See 319 U.S. at 46, 63 S.Ct. at 918. Section 304 expressly gave the ICC authority to establish working hours for private carriers only "when needed to further safety of operation". (Emphasis added). The employees argued that the ICC's failure to regulate, and concomitant failure to make a finding that regulation was necessary, meant that the ICC had no immediate power to regulate their working hours. The Court disagreed, holding that the necessity to make a...